Hassan (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, made by Anwar Ul Hassan. The primary applicant was Sidra Anwar, and Zainab Hassan was also listed as a dependent applicant. The central dispute revolved around whether Mr. Hassan qualified as a member of the family unit of the primary applicant at the time of the visa application, particularly in light of a breakdown in their relationship. The decision was made by Mark Bishop, a Member of the Tribunal.

The legal issues before the Tribunal were whether Mr. Hassan satisfied the criteria for being a member of the family unit of the primary applicant as defined by clause 500.311 of Schedule 2 to the Migration Regulations, and consequently, whether he met the primary criteria for the subclass 500 visa. This required an assessment of whether the relationship between Mr. Hassan and Ms. Anwar met the definition of a "married relationship" under section 5F of the Migration Act 1958, specifically concerning mutual commitment to a shared life, the genuine and continuing nature of the relationship, and whether they lived together or separately and apart on a permanent basis.

The Tribunal reasoned that the evidence, including a Form 1022 notification of change in circumstances, correspondence from a migration agent and the primary applicant, and a Form 1446 requesting withdrawal of Mr. Hassan from the application, indicated a separation and breakdown of the relationship. The primary applicant explicitly stated her intention to withdraw Mr. Hassan from her application due to their separation and a conscious decision to live apart. Applying section 5F of the Migration Act, the Tribunal found that the couple did not have a mutual commitment to a shared life, were separated from January 2018, did not live together, and lived separately and apart on a permanent basis. Consequently, Mr. Hassan was not considered a member of the family unit from 23 January 2018 and did not satisfy clause 500.311 of the Regulations.

As Mr. Hassan did not meet the criteria for being a member of the family unit and therefore did not satisfy the requirements for the subclass 500 visa, and he did not claim to meet the criteria for a subclass 590 visa, the Tribunal affirmed the decision not to grant him the visa.